some as possibly setting a higher, more difficult evidentiary standard than the Convention required. Substantial concern was expressed that the effect of this understanding might be to undercut the central feature of the Convention, at least as codified in U.S. law, and to encourage other States also to adopt higher domestic standards, thereby limiting the effectiveness of the Convention.

Although no higher standard was intended, we recognized the concern raised by this criticism. At the same time, our colleagues at the Justice Department felt that, since the definition of "torture" will constitute the basis for a criminal punishment under U.S. law, some clarification of the Convention's definition was constitutionally required.

Accordingly, and on the basis of extensive discussions with concerned representatives in the human rights community, we prepared a codified proposal which does not raise the high threshold of pain already required under international law, but clarifies the definition of mental pain and suffering, and maintains the position that specific intent is required for torture.

The revised understanding reads as follows: "The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality."

While somewhat more lengthy than the earlier proposals we believe this revised understanding accommodates the concerns of those responsible for seeing that prospective defendants are treated fairly under our domestic law, on the one hand, and those on the other hand who are concerned not to undermine the effective implementation of the Convention by other States around the globe.

LAWFUL SANCTIONS

Another point of criticism of the original package has been its proposed understanding concerning the scope of "lawful sanctions," as used in Article 1.

You will recall, Mr. Chairman, that Article 1 excludes from the definition of torture "pain or suffering arising only from, inherent in or incidental to lawful sanctions." The initial understanding indicated that the term "sanctions" would include "not only judicially-imposed sanctions but also other enforcement actions authorized by United States law or by judicial interpretation of such law." This clarification was thought necessary because the Convention does not itself indicate whether the "lawfulness" of sanctions (judicially imposed penalties as well as enforcement actions) should be determined by domestic or international law. Our earlier proposal, Mr. Chairman, was intended to protect against illegitimate claims based on unclear standards that law enforcement actions authorized by U.S. law constitute torture within the meaning of the Convention.

Critics of this proposal pointed out, however, that such a formula would open the possibility for any State Party to the Convention to attempt to legitimize officiallysanctioned torture simply by authorizing it specifically as a matter of domestic law. A State could then use the same rationale to exempt its torturers from prosecution under the Convention. This possibility obviously, was not what we had intended. Upon further reflection, therefore, we have clarified our position to make clear that domestic legality does not remove an action from the Convention's definition of torture if the action violates a clear prohibition in international law. In other words, we propose that States Party not be permitted to invoke the "lawful sanctions" exception to legitimize activities which clearly amount to "torture" in contravention of the basic object and purpose of the Convention, even if they are technically lawful under their own domestic law.

Questions have been raised about whether this Convention affects our application of the death penalty.

Mr. Chairman, I want to emphasize my firm and considered opinion that the death penalty does not violate international law, nor does international law require the abolition of the death penalty. Many, perhaps even most, countries in the world today provide for capital punishment for some offenses under their domestic laws, and none of the major international human rights instruments prohibit the death

penalty. The European Court on Human Rights recently held explicitly that the death penalty was not unlawful under international law.

Moreover, international law could not develop a prohibition against capital punishment applicable to the United States, as long as the United States continues to impose the death penalty and to object to development of such a norm.

Nonetheless, some concerns have been expressed that the United States should take no risks in this regard. To allay these concerns, the administration has decided to propose an additional understanding, addressed explicitly to the death penalty issue. Since the death penalty is clearly not a violation of international law, this in no way derogates from the Convention. Specifically, we propose that the following understanding be reflected in the Senate's resolution of advice and consent as well as in our instrument of ratification: "The United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty."

I regret that this additional understanding was not included in the revised package of reservations, understandings, and declarations transmitted to the committee, but, in preparing for this hearing, we concluded that it was appropriate and prudent to be categoric with our treaty partners with respect to our position on the death penalty.

OTHER CHANGES

Among the other changes to the original package, Mr. Chairman, we have deleted the former understanding on common law defenses, which was widely misunderstood, and we have deleted our former reservation to the obligation not to extradite individuals if we believe they would be tortured upon their return to the requesting State. The United States supports the obligation of “non-refoulement," and we never intended to suggest by the proposed reservation that we wished to retain the right to send a person back to a country where that person would be tortured.

CRUEL, INHUMAN OR DEGRADING PUNISHMENT

The Convention deals primarily with "torture." In Article 16, however, the Parties also undertake to prohibit lesser forms of ill-treatment under the rubric of "cruel, inhuman or degrading treatment or punishment." The revised package retains a statement to the effect that the United States considers itself bound, under Article 16, to prevent "cruel, inhuman or degrading treatment or punishment" not amounting to torture only insofar as those words mean the cruel and unusual punishment prohibited by the Fifth, eighth and/or Fourteenth Amendments to the Constitution. In fact, the revised package upgrades this point to a reservation from the status of an understanding.

The reason for this reservation is straightforward. The formulation used by Article 16 is ambiguous, particularly in its reference to "degrading treatment." Of course, our own 8th Amendment to the Constitution protects against cruel and unusual punishment. Our courts have interpreted this prohibition to protect against a broad range of practices that involve the unnecessary and wanton infliction of pain. This provision, which applies to convicted persons, covers their living conditions, disciplinary treatment, and medical care. These protections have been applied not only in prison contexts but also, under the Fifth Amendment incorporates these protections and makes them applicable to the States.

We would, expect, therefore, that our Constitution would prohibit most (if not all) of the practices covered in Article 16's reference to cruel, inhuman and degrading treatment or punishment. Nevertheless, we are aware that some countries give a broader meaning to this provision. for example, the European Court of Human Rights in Strasbourg has found the so-called "death row phenomenon" to constitute "cruel, inhuman and degrading treatment or punishment."

While such decisions are not binding on our courts, it is prudent that the U.S. specify that, because the Constitution of the United States directly addresses this area of the law, and because of the ambiguity of the phrase “degrading," we would limit our obligations under this Convention to the proscriptions already covered in our Constitution.

We also propose a reservation to the effect that the United States does not consider itself bound to submit to the jurisdiction of the International Court of Justice in cases of interpretation or application of the Convention, but reserves the right to agree to do so or to follow any other procedure for arbitration in a particular case.

Such a reservation is consistent with the policy of this administration and its predecessor, concerning the International Court of Justice. It is also consistent with the Senate's decision to require such a provision in the genocide convention. We believe that, in due course, when a fair and reliable regime for using the ICJ is in place, the U.S. will be able to utilize the ICJ on a mandatory basis under this and other treaties.

IMPLEMENTING LEGISLATION

The Convention is not self-executing, Mr. Chairman, and thus will require implementing legislation, as in the case of most multilateral treaties concerning human rights and counter-terrorism. The provisions of Article 3 would be implemented by "competent authorities" within the Department of Justice and State as appropriate. Although we have deleted the proposed declaration on this subject as unnecessary, we intend to deposit the instrument of ratification as soon as the implementing legislation has been enacted. We should make this Convention legally binding only after Congress has provided the means for fulfilling its obligations.

In conclusion, Mr. Chairman, the administration strongly supports the early ratification of this important human rights treaty. Prompt ratification will make clear our collective abhorrence and condemnation of torture. In reviewing and modifying the "package" of proposed reservations, declarations and understandings, we have worked hard both within the Executive Branch and with the human rights community to take into account the various expressed concerns and interests. We believe this is a good treaty, one which will serve our international interests as well as those of the international community.

It has the formal support of the American Bar Association and the human rights community, as you will no doubt hear in testimony later today. We urge that the Senate give its advice and consent to ratification.

I will be pleased to answer any questions you may have.

The CHAIRMAN. Thank you very much.

Mr. Richard.

STATEMENT OF MARK RICHARD, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

Mr. RICHARD. Thank you, Mr. Chairman. My name is Mark Richard. I am the Deputy Assistant Attorney General in the Criminal Division, Department of Justice. With your permission, Mr. Chairman, I would propose submitting my written statement for the record and merely summarizing it at this time.

The CHAIRMAN. Thank you.

Mr. RICHARD. It is a pleasure for me to appear before this committee to testify in support of the torture convention and to explain the concerns the Department of Justice has with some of those provisions and how the proposed reservations, understandings and declarations address those concerns.

As I indicated, we fully support the worldwide effort to outlaw torture and to make its perpetrators international criminals subject to prosecution wherever they may be found.

The basic problem with the convention, one that permeates largely all of our concerns at the Department of Justice, is its imprecise definition of torture, especially as that term is applied to actions which result solely in mental anguish. This definitional vagueness makes it doubtful that the United States can, consistent with constitutional due process constraints, fulfill its obligation under the convention to adequately engraft the definition of torture into the domestic criminal law of the United States.

Unless this definitional problem is addressed as it is, we believe, in our reservations, understandings and declarations, the torture

convention, we fear, will have the effect of fostering unwarranted litigation in numerous areas of law enforcement.

The convention does place U.S. law enforcement officials when traveling overseas at risk of arrest and prosecution in foreign jurisdictions or even extradition to a third country for purported violations committed within the United States. This result, I would add parenthetically, remains the same whether in fact we adhere to the convention or not.

The fact remains that the would-be defendant law enforcement official would be subjected to trial under a definition which, viewed in light of U.S. constitutional principles, is so imprecise as to raise the specter of fundamental unfairness.

While we realize that no reservation, understanding or declaration will by itself stop the outlaw nations intending to harm the United States, we should not be insensitive to the potential problems we may encounter in this regard.

Nevertheless, the reservations, understandings and declarations we have proposed, if found to be acceptable in the international community, will favorably affect the evolution of the concept of torture under international law. We believe they are reasonable and necessary to protect the legitimate efforts and interests of law enforcement in this country.

They have been drafted to take into consideration and honor the valid concerns of those private individuals and groups who on a daily basis fight torture around the world. They have been crafted to protect the innocent, not to shield the guilty.

The torture convention defines torture as any act other than one undertaken as part of a lawful sanction "by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as intimidating or coercing him or a third party or for any reason based on discrimination of any kind." In crafting the definition of the term "torture," the drafters had no significant body of international legal precedent on which to draw. As a result, it is perhaps not surprising that they settled on a relatively general definition. Torture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct.

As applied to physical torture, there appears to be some degree of consensus that the concept involves conduct, the mere mention of which sends chills down one's spine. Insofar as physical pain is concerned, the boundaries of torture as defined by the convention appear to have satisfactory clarity.

It is, however, in regard to the area of mental pain that the definition poses the greatest problem. Mental pain is by its nature subjective. There is presently no consensus or well-defined body of international law concerning what degree of mental suffering is required to constitute torture. Accordingly, the torture convention's vague definitions concerning the mental suffering aspect of torture cannot be resolved by reference to established principles of international law.

In an effort to overcome this unacceptable element of vagueness, we have proposed an understanding which defines severe mental pain constituting torture with sufficient specificity, we believe, to

protect innocent persons and meet constitutional due process requirements.

Our proposed understanding encompasses conduct calculated to generate severe and prolonged mental suffering of the type which can properly be viewed as rising to the level of torture. As such, it properly condemns as torture intentional acts such as those designed to damage and destroy the human personality.

The package of reservations, understandings and declarations submitted to the committee earlier this month proposes five understandings concerning the definition of torture. Due to the questions which have arisen concerning the convention's effect on the use of the death penalty, a sixth understanding has in fact been added. The first understanding related to specific intent and severe mental harm I have already discussed. I would like to explain just briefly the reasons for the others.

The first of these provisions expresses the understanding that article 1 applies only to acts directed against persons in the offender's custody or physical control. This is intended to clarify the point that the convention does not apply to situations before custody is obtained.

The next understanding addresses the meaning of the term "sanctions" as used in article 1. It is designed to ensure that law enforcement actions undertaken consistent with statute or case law as opposed to just judicial orders are not interfered with by the convention unless such conduct clearly violates international law. This makes clear, for example, that the use of reasonable force to maintain order in a penal institution is not prohibited by the convention.

The next understanding addresses the term "acquiescence" and clarifies that to be culpable under the convention for activity constituting torture, the public official must have had prior awareness of such activity and must have breached his legal responsibility to intervene to prevent the activity. This understanding, we believe, is necessary to ensure that article 1 complies with the due process requirements of the Constitution. Of course, knowledge under our law includes not only actual knowledge such as when a superior actively directs or participates in the prohibited activity but also willful blindness; that is, the situation where the superior has a duty to prevent the misconduct and deliberately closes his eyes to what would otherwise have been obvious to him.

The next understanding relating to article 1 provides that noncompliance with applicable legal procedural standards does not per se constitute torture. It is intended to demonstrate that court orders suppressing evidence based on misaction by law enforcement agents in the United States do not in and of themselves establish the existence of torture.

In our judgment, the understandings are relevant and beneficial to all parties. Moreover, they can in no way be construed to benefit the public officials who are actually engaged in the practice of torture.

With regard to article 3, extradition and deportation, this article will probably have the most day-to-day impact upon law enforcement activities in the United States. The United States does not